Torture in International Criminal Law

A majority of human treaties such as the Rome Statute and the European Convention on Human Rights prohibits torture. However, none of these treaties contains a concise definition of the term ‘torture’. This leaves the International Criminal Court and other global tribunals in a dilemma when trying persons accused of torture. Consequently, it is upon the discretion of a judge to determine whether a given act amounts to torture. A general definition of torture is available in most of the human treaties. This definition describes torture as inhumane treatment or cruelty against a human being. This definition fails to establish three variables that derive the true meaning of torture in accordance with the International Criminal Law (ICL).

In conformity with the United Nations Declaration against Torture, ICL provides three qualities that are necessary to establish an act of torture. They are pain intensity, purpose of the act and a perpetrator’s status in the society. To begin with, the pain inflicted on a person must meet several criteria. Firstly, it must be severe. This means that pain should be above average punishment that is applicable in rehabilitation institutions such as prisons. Additionally, torture’s pain must involve cruel actions prohibited by the existing international law. Moreover, pain inflicted on a person must be one that aims at degrading the respect of an average individual. After the jury agrees on this first prerequisite of torture, the bench must establish the reason why a victim received pain that met the discussed conditions.

International Criminal Law outlines the purpose of torture. Objectives of torture include obtaining confession or sensitive information from an individual, and infliction of pain as a punishment. These two elements take place against the will of an aggravated person. This makes vices such as rape to qualify as acts of torture because they are in contrary to the willingness of a victim. Initially, a person accused of torture must have been a public or government official. However, the International Criminal Law modified this condition. The amendment came into place to prosecute leaders of terror groups that torture civilians when protesting against governments. As a result, any person can become responsible for torture without necessarily being a government agent or official.

A clear definition of torture is necessary. There is the need to align the International Criminal Law with the provisions of human rights treaties. Such a move will enhance subjectivity of international judges when dealing with cases of torture. More importantly, a concrete description of torture is essential in order to distinguish torture from cruelty and other forms of human mistreatment.